Anthony Byrne (Holt, Australian Labor Party) Share this | Hansard source

[by video link] by leave—I am very pleased to speak on this report as a longstanding member of the Parliamentary Joint Committee on Intelligence and Security. In reflecting on my contribution today, I went back to the report that basically started this all, that basically created the foundation for the mandatory data retention regime which we are discussing today in this committee's report. It started with this. I want to read it to you because it highlights the work of the committee and how much influence this committee has had in the shaping of the mandatory data retention regime and also illustrates why it's important for this committee's recommendations to continue to be taken into consideration by the government given that the committee has had a substantially very positive influence on the legislation that has been brought forward post this original report. Mandatory data retention came before my committee in a letter that was sent to me by the then Attorney-General Nicola Roxon. Data retention was stipulated in these 2.5 lines:

… tailored data retention periods for up to 2 years for parts of a data set, with specific timeframes taking into account agency priorities, and privacy and cost impacts.

Our committee was asked to look at that. That was the information that the committee was given on mandatory data retention.

This was in 2012. May 2012 was when the Attorney-General sent that letter of request to the committee of which I was then chair. So what effectively happened was that the genesis of the mandatory data retention was in 2.5 lines. It was up to the intelligence committee of the day—and I refer here to George Brandis, who was the shadow Attorney-General, and Philip Ruddock, who was my deputy chair—to extract that out of the then Attorney-General's department, also working very collaboratively with the law enforcement agencies. I would like to pay tribute here to the former Director-General of ASIO David Irvine and the person that was formerly involved at the AFP that I worked with, Mike Phelan, who is now CEO of the Australian Criminal Intelligence Commission. Without those two individuals and without the collaboration between the committee and the intelligence and security agencies, we would not have had the foundation that was enunciated, delineated and clearly articulated in the report that was tabled in 2013.

I point out this history because it is always good to learn about history when we look at these things. We should always reflect back on history. At the start of 2014, our intelligence agencies and security agencies didn't believe that we would legislate a mandatory data retention regime in this country. What changed all of that was the threat that was posed to Australia by the emergence of ISIL. Then the whole game changed. But we should always remember that history can turn very, very quickly. At the start of 2014, when this government actually had what it called a 'regulation day', they were going to abolish the Independent National Security Legislation Monitor—that was a thing that was being put forward. The second thing that was being put to me by agencies was their lack of confidence that there would be a mandatory data regime. ISIL changed everything. We then contemplated that legislation in 2014, and in May 2015 there was a very comprehensive report that drew extensively from the 2013 report on our intelligence committee. We set benchmarks. We agreed with the agencies that they needed these powers to actually perform their duties and that, to keep our country safe, we needed to give law enforcement agencies the powers to prosecute the people that we want prosecuted to protect our country and our civil society. But there must always be as a founding principle of any new legislation of this type corresponding civil liberty concerns and corresponding oversight powers that match the new and extraordinary powers that are given to agencies.

I'd like to point out that very few other places in the world have as comprehensively mandated a regime as Australia has with this regime. When we were first looking at this, we were looking at the United Kingdom and the United States. They do not have in their legislation anything that is as closely mandated as this data retention regime, and I would submit that that is because of the work that was done by the PJCIS in 2012, 2013, 2014 and 2015. That laid the groundwork and improved the legislation. When we got the legislation in 2014, it needed significant improvement. The report in 2015 significantly improved the mandatory data retention regime and made it workable.

In keeping with that trajectory, this report also further improves on that legislation. It improves safeguards. It also gives confidence to the agencies. One of the things that the agencies are concerned about—and it's in this report, in testimony from both ASIO and the AFP—is that 87 parties, outside of those parties that are mandated under the data retention regime, could in fact access metadata. I remember, when we first looked at this in 2012, I didn't want the RSPCA to be able to access my metadata or the metadata of any Australian. But under the existing law, as it stands, they can. And they don't need to use it. They're not a declared law enforcement agency. They are just one of a host of agencies—of 87 that have been identified—that can use and have been using another provision of the telecommunications act to access metadata outside of the metadata regime. One of the strongest recommendations of this committee, which I would be very disappointed if the government didn't accept, is that that loophole must be closed. As Mike Burgess said, the metadata was created for a set number of agencies—security agencies and law enforcement agencies—to be able to get a prescribed set of information that is kept by telecommunications companies. It wasn't intended that the RSPCA, local councils or any other body were able to do that, and I think the public was justifiably concerned, and so were we.

One disappointment for me in listening to the evidence was that the department that was supposed to be monitoring this, the Department of Home Affairs, did not bring this to the committee's attention. Given than the committee has done so much work in terms of its involvement in the architecture of the subset of data that was kept in 2012, 2013, 2014 and 2015, you would have thought that the Department of Home Affairs would have had the courtesy to inform the committee of a substantial breach of the metadata regime by agencies. That disappointed me a very great deal.

The recommendations in this report—this unanimous report with an additional, helpful comment provided by the Labor PJCIS members—will in fact strengthen this world-leading regime even further and offer further protections for that data, target it better and, most importantly, protect people who are accessing the data. The report talks about the number of people that can access it, and we quantify it. We insist on a unified regime where people have to go through a set procedure before they can seek the data from a telecommunications company. These things are not protecting just civil society; they're protecting the security agencies, their personnel and the police forces as well.

The report itself is a tribute to the bipartisanship that exists on what I think is the most important committee in this parliament. There have been many, many reports produced by this committee that have resulted in better laws that make our country safer, and both groups on the PJCIS, both Labor members and coalition members, work together to make that happen. That sometimes gets lost in rancour when we're having a party-political stoush like I saw yesterday. The key thing is that this is a bipartisan report with an additional comment, not a dissenting report.

I'd also like to pay tribute to the young man who chaired the committee. That's Andrew Hastie, the member for Canning. He's had an enormous workload. He has an enormous workload on those very broad shoulders of his, and we are very lucky to have a chair who has the patience, diligence and tenacity of this young man. I think he'll look at the legislation that's been passed in his tenure as chair, and it will reflect very well on him and bode very well for his future.

So I commend the report to this House. I would also like to thank other committee members, in particular the shadow Attorney-General, who did a huge amount of work on this, and my fellow committee members the shadow minister for home affairs and Senator Jennifer McAllister for coming together and working for a solution. What we recommend here will even strengthen a regime which has been used and which keeps Australians safe but does have appropriate safeguards and oversight. Thank you very much for your indulgence, Deputy Speaker.

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